Bonus 51: The Slippery Slope of Judicial "Courage"

As calls for judges (and justices) to show "courage" grow louder, the case for why courage shouldn't become a license for federal courts to ignore the public—or the representatives it elects.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of Thursday’s content is behind a paywall to help incentivize those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if your circumstances permit:

One of the central distinctions between the substance of Monday’s free issues and that of Thursday’s bonus content is the personalization of the latter. This week, I wanted to reflect on the idea of judicial “courage,” which is back in the news thanks to remarks made by Fifth Circuit Judge James Ho at the Heritage Foundation last week. The basic gist, reflected not just in Judge Ho’s speech but in similar remarks by other prominent Trump-appointed circuit judges (including Sixth Circuit Judge Amul Thapar), along with some conservative legal commentators, is to make the affirmative case for why federal judges should hand down rulings entirely without regard to the public backlash that they may provoke—arguing that to do otherwise is to subvert their responsibilities as judges. As long as they’re “correct,” the argument goes, it shouldn’t matter if opinions are “unpopular.”

I have no problem with judicial “courage” in the abstract. Part of why Article III provides for unelected judges is to insulate those tasked with interpreting the Constitution from direct democratic accountability—to preserve the ability of federal courts to stand as a bulwark against tyrannies of the majority. But as I explain below the fold, even if we could agree on an objective definition of the concept (and, as Professor Orin Kerr has long suggested, that’s a fool’s errand), judicial “courage” is not an absolute good. Broader public support of the courts is essential to the ability of courts to hand down decisions with which a majority of the public may well not agree. Thus, although some of the most important decisions courts hand down will likely be those that run against the tide of public opinion, that only makes it more important, in other cases and contexts, for federal courts to be (and act as if they are) democratically accountable.

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